R v MDZ[2024] QCA 139

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  This is an application for leave to appeal against sentence.  The sentence below is said to have been manifestly excessive.  Also, a specific error is said to have been made by the District Court judge in applying principles of mitigation due to hardship^[1] in a case where it was almost certain that the applicant would be deported after sentence, because of the offending which was the subject of the sentence.

The Offending

2. [2]
   The applicant pled guilty to six counts of rape, all against children, and all against children he was related to.
3. [3]
   Count 1 involved his inserting his penis in the anus of his niece.  At the time the applicant was 17 years old (legally a child) and the complainant was six years old.  The offending took place some 20 years before the applicant was charged.  The applicant was at the house owned by the complainant’s parents for a family gathering.  The complainant was asleep in her bed when she awoke to find that the applicant was on top of her and had his penis in her anus.  She was in pain.  When she woke, the applicant seemed shocked and ran out of the room.  The complainant said nothing about the offending for 10 years.  Once she disclosed, there was a family meeting in which the applicant confessed and apologised.
4. [4]
   The remaining five counts of rape were committed at times when the applicant was aged between 28 and 32 years.  The complainant was his biological child and she was aged between five and eight years at the time of the offending.  All the offending occurred in the family home.  Count 3 occurred when the applicant and the complainant, together with her brothers, were watching television.  The applicant asked the complainant if she wanted lollies, and they both went to the kitchen, apparently to get lollies.  The applicant wrapped a tea-towel around the complainant’s eyes, blindfolding her.  He then put two fingers in the complainant’s mouth, which she bit.  After that the applicant put his penis in the complainant’s mouth and instructed the complainant to suck it.  She did until he ejaculated.  The complainant gagged and spat into the sink.  She had a glass of water and then the applicant sent her out of the kitchen.
5. [5]
   Count 4 occurred against the background of the complainant making a mess in the living room.  The applicant was angry at the mess, and threw her toys in the rubbish bin.  He then called to the complainant to come into the kitchen.  When she did so, the applicant opened the fridge so that it blocked her exit via the kitchen door.  He picked her up and bent her over the kitchen bench, pulled her clothing off and inserted his penis into her anus.  He continued to rape her for six or seven minutes.  The complainant cried in pain.
6. [6]
   Count 5 occurred when the complainant was seven years old.  The applicant had his computer and a chair in the garage.  He called the complainant into the garage and had her kneel on a chair in front of the computer desk.  He bent her over so that she was facing the computer, pulled her clothing down and inserted his penis into her anus.
7. [7]
   Count 6 involved the applicant calling the complainant into a bedroom.  He told her to lie down on the end of the bed with her stomach on the bed and her legs over the side of the bed.  Again the applicant pulled down her clothing and put his penis into her anus.  He raped her for approximately five or six minutes until he ejaculated.
8. [8]
   Count 7 occurred when the complainant was seven or eight years old.  She was in her bedroom and the applicant called her into her mother’s bedroom and asked her to scratch his legs and back.  She complied.  The applicant then lay on his back, pulled his penis out of his pants and told the complainant to suck it.  She did so.
9. [9]
   Four or five years after the last of these offences the complainant had been misbehaving at school.  By this time the applicant and the complainant’s mother had separated.  Apparently as a threat, the complainant’s mother told her that if she continued to misbehave she would send her to live with her father.  After conferring with one of her friends, the complainant told her mother what the applicant had done to her.  Again there was a family meeting where the applicant was confronted.  He admitted that he had “had his way” with the complainant, but minimised the type of offending and the number of times upon which it occurred.  He expressed remorse but also expressed the view that there would be no peace because he was a monster.

The Sentence

10. [10]
    The sentence imposed was 10 years on each of counts 4, 5 and 6, with lesser sentences of two years on count 1; five years on count 3 and five years on count 7.  All sentences were to be served concurrently.  In accordance with the PSA, the sentencing judge declared that the convictions on counts 4, 5 and 6 were convictions for serious violent offences.

Psychiatric Report

11. [11]
    Legal Aid commissioned a report from Dr Kovacevic which was before the sentencing judge.
12. [12]
    Dr Kovacevic describes the applicant as being an unemployed man who last worked in 2016, notwithstanding that he had a university qualification in information technology.  He lived with a friend and her father.  He was not receiving any counselling or psychiatric treatment.  He was not using alcohol or illicit drugs, although he had engaged in binge drinking and had used cannabis and LSD in the past.  He complained of no significant psychiatric symptoms.  He had never had contact with any mental health service.  He reported a strong tendency to avoid people.  He had a stutter.
13. [13]
    The applicant was born in New Zealand.  His parents separated when he was one year old and his mother took him to a third country where he lived for eight years.  He reported multiple incidents of sexual abuse during this time at the hands of his relatives and friends of his mother’s.  At age nine the applicant returned to New Zealand and was sexually abused at the hands of his cousins until he was 14, when he moved with his mother and some other relations to Australia.
14. [14]
    The applicant’s report of sexual abuse as a child appears to have been accepted uncritically by Dr Kovacevic, and appears not to have been challenged at the sentencing hearing.  The judge below acted on the basis that it was true.  The applicant had not previously disclosed the abuse and Dr Kovacevic records that the applicant thought it was causally related to his offending.
15. [15]
    The applicant told Dr Kovacevic that his sexual orientation was towards adult females and denied any sexual attraction towards children.  He told Dr Kovacevic that he regretted not having had the benefit of professional help to deal with his own abuse.  But he had never sought any treatment.  He expressed remorse for his offending behaviour.  While he said that he understood his daughter could be suffering long‑term consequences of the abuse he had perpetrated upon her, he was “unable to discuss any potential long-term harms in any detail”.
16. [16]
    Dr Kovacevic records that he thought it was “protective that [the applicant] only engaged in intrafamilial sexual offending”.  I cannot endorse this statement and it could not have been used in the applicant’s favour on the sentence.  Sex offenders who abuse children in family situations are often able to do so for many years undetected and cause great harm to their own children, and other children within their extended families.  The law recognises that this sort of offending is aggravated offending – domestic violence is a circumstance of aggravation, s 9(2)(gb) of the PSA.  The applicant spent 11 years in his first serious relationship, and had five children with that partner.  At the time of sentence, he was in another relationship and had two more children.
17. [17]
    Dr Kovacevic noted that the applicant did not “exhibit extreme minimisation or denial or sexual violence”.  However, so far as risk is concerned, Dr Kovacevic noted that the applicant had difficulties with “self-awareness, insight, stress, and coping”.  And that his own history of childhood sex abuse “provided one of the key risk factors for his own sexual offending”.  Dr Kovacevic expressed his view that there were psychological theories and mechanisms by which individuals who had experienced sexual abuse as children became abusers themselves.  Dr Kovacevic  saw it as positive that the applicant was open to treatment and supervision.  And no doubt it is, but he has never sought any treatment.  Dr Kovacevic’s assessment, which did not seem to be based on any of the usual psychiatric tools for assessment of risk, was that the applicant was at moderate risk of re-offending.
18. [18]
    Dr Kovacevic expressed the view that the applicant probably had autism spectrum disorder.  He also noted that he had “features of repressed and avoidant personality.  Such individuals often harbor considerable internal negative energies, anger and frustration that can render them at risk of aggressive outbursts, in terms of both physical and sexual aggression, in particular when their internal inhibitions are reduced.”
19. [19]
    I would remark that in terms of risk of re-offending, and the potential for rehabilitation, Dr Kovacevic’s report is against the applicant in significant ways.  His autism and personality traits are unchangeable, as is his history of childhood sexual abuse.

Risk of Deportation

20. [20]
    The sentencing judge was told that the applicant was in Australia on a temporary visa and that visa would be automatically cancelled following the convictions and sentence for offending against children.  The applicant’s counsel below said that his seven biological children and his “current partner” would remain in Australia when he is deported, and that would be a hardship to him.  Counsel, however, acknowledged that at the time of the sentence the applicant had no contact with his first five biological children, and very little contact (supervised by the Department of Child Safety) with his second family of two children.  He did have contact with, and the support of, his current partner, although he did not live with her.  The judge was told that the applicant had lived his entire adult life in Australia, studied here and worked here.  His deportation would be to New Zealand where he had little family or social connection.

The Sentence Below

Manifest Excess

21. [21]
    In sentencing the applicant the judge below noted that the maximum penalty for rape was life imprisonment.  She took cognisance of his plea and accepted that it showed more than just a willingness to facilitate the course of justice, but involved his taking responsibility for his actions.  She noted, however, that it had come too late to prevent his daughter being cross-examined at committal proceedings.  She correctly noted that he had no relevant criminal history.
22. [22]
    The sentencing judge noted that the offending was a gross breach of trust as the complainants were his niece and daughter, persons entitled to his protection.
23. [23]
    So far as count 1 was concerned, she noted that the offence had been committed when the applicant was a child and that he was to be sentenced having regard to the provisions at ss 140–144 of the Youth Justice Act 1992 (Qld).  No complaint is made about her reasoning in that regard, or about the separate (concurrent) sentence imposed on count 1.
24. [24]
    Both counsel agreed that the trial judge ought to impose a global sentence which reflected all the criminality of the offending on counts 4, 5 and 6, whilst imposing concurrent lesser sentences on the remaining offending.  The judge below did this, and it seems a sensible structure to have used.
25. [25]
    Counsel for the applicant referred to various cases which he said demonstrated that the sentence was manifestly excessive.  There were cases where a lower sentence was imposed for offending which was broadly comparable, or cases where sentences comparable to that imposed here were imposed for offending which, it was submitted, was greater than the applicant’s.  Counsel for the respondent referred us to cases which were submitted to demonstrate that the sentence here was within range.  The cases in this area of law differ in the factual details of the offending involved, and as to the personal antecedents of the accused.  Speaking of that feature of the case law concerning offending against children, Muir JA said in R v CBJ:

“On any view of the matter, the applicant’s offending conduct was singularly abhorrent and deserving of condign punishment. But most sexual offending against children will merit that description and deserve such punishment. In attempting to determine where such offending sits in relation to comparable offending with a view to maintaining appropriate consistency in sentencing, no minute weighing of subject conduct against that in comparable cases is appropriate. In R v Dwyer, Keane JA observed:

‘An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.’

Rather, it is necessary to identify the features of the subject offending which are relevant to sentencing and to determine by reference to comparable cases where the subject offending sits within any range of sentences that is able to be discerned.”^[2]

26. [26]
    In my view the decision in CBJ is one which illustrates that the sentence here is not manifestly excessive.  That case concerned a 54 year old man who pled guilty to a number of sexual offences against his stepchildren, a boy aged four to eight at the time of the conduct, and a girl aged six when the majority of offences were committed against her.  CBJ committed 10 rapes and around 37 other offences of indecent dealing.  The rapes involved using his penis to penetrate a six year old girl’s vagina on eight occasions; digitally penetrating her on one occasion, and lastly, penetrating her vagina with his tongue.  The rapes occurred over a period of one month.  The indecent dealing and exposure to an indecent act offences occurred over a much longer period of time (four years).  CBJ recorded much of the conduct on audiovisual equipment, although he was not charged with recording or possessing that material.  CBJ had relevant prior convictions for sexual offending but which were substantially less serious.  CBJ had no material mitigating circumstances other than his plea of guilty, and the Court of Appeal judgment remarks that the plea was in the face of an overwhelming case due to the audiovisual footage.
27. [27]
    The Court of Appeal in CBJ reduced sentences on the eight vaginal rapes from 15 years to 13 years.  In doing so Muir JA remarked that the authorities “show that sentences of 15 years and over after a plea of guilty are not imposed in the absence of a circumstance such as substantial psychological or physical cruelty … or a protracted period of offending” – [43].  The Court recorded that the applicant’s submission in that case was that the applicant’s offending was more serious than the cases which attracted sentences of 10 to 12 years, but less serious than those which attracted sentences of 18 to 20 years (after a trial).  On behalf of CBJ it had been submitted that the appropriate sentence was that adopted by the Court of Appeal, namely 13 years.
28. [28]
    The offending by CBJ was worse than the offending by the present applicant because of the number of offences committed and the number of serious offences – rapes – committed.  CBJ also compared unfavourably to the present applicant in that he had a relevant criminal history.  In addition to his plea, the present applicant, through Dr Kovacevic, puts before the Court evidence of partial insight into his offending and its effects, and a statement, which so far rests in intention only, that he would be willing to engage in psychological therapy to reduce the risk of his offending.
29. [29]
    Lastly, the present applicant does demonstrate hardship by showing that he is likely to be deported and live in a country where he has few societal connections, and away from his present partner and his children.  Having said that, he will likely be deported to New Zealand, a country which is culturally like Australia, where he will not be unsafe or persecuted.  If he is deported to New Zealand at the end of his sentence, he will gain the advantage of not becoming subject to the Dangerous Prisoners (Sexual Offending) Act 2003 (Qld).  Further, I note that Dr Kovacevic sees him as generally avoiding interactions with people; he has no contact with his first five children and very limited contact with his second family of two children.  He does not work.  Because of all these factors hardship as a result of deportation will not be so great as in some other cases.
30. [30]
    Acknowledging the differences between this case and the case involving CBJ, I think the decision in CBJ is broadly comparable.  The sentence imposed by the Court of Appeal in CBJ was three years higher than the sentence which was imposed upon the applicant.  Comparison between the applicant’s sentence and the sentence in CBJ indicates that the sentence imposed here was appropriately within the range of punishment to be imposed for the offending which the applicant committed.
31. [31]
    The case of R v KAC^[3] was relied upon by the applicant.  A consideration of the offending there also demonstrates that the sentence imposed below was not manifestly excessive.  KAC pled guilty to nine counts of indecent dealing with a child, three counts of rape and three counts of possession of child exploitation material.  The offending was committed over a nine month period.
32. [32]
    KAC raped his three year old niece over a four day period by putting his penis into her vagina.  He took about 40 indecent pictures of her at that time.  The second complainant was an eight year old girl left in KAC’s care.  He bound her hands and gagged her to rape her.  Again he took photographs of this offending.  As well, KAC took photographs of three other children.  He had more than 46,000 images on his computer.
33. [33]
    KAC was 43 and 44 at the time of his offending.  He had an irrelevant criminal history.  He was entitled to the benefit of a plea.  He received a sentence of 12 years imprisonment and the Court of Appeal dismissed an application for leave to appeal on the grounds that the 12 year sentence was manifestly excessive.
34. [34]
    I cannot see that the sentence imposed below was manifestly excessive.

Asserted Error of Law

35. [35]
    As noted above, the contention was that the judge below had misapplied the principles relating to hardship as a result of likely deportation.
36. [36]
    As to the notion of hardship brought about by deportation the sentencing judge said:

“Punishment, general and specific deterrence, and denunciation as well as protection of the community from you are factors to which I have had regard. I also give some limited weight to the fact that a sentence of 12 months’ imprisonment with a custodial component will trigger the cancellation of your visa. It was submitted that deportation may be a relevant matter in mitigation of a sentence when it makes the period of incarceration more onerous or where upon release the fact of imprisonment would deprive you of the opportunity of permanently residing in Australia. There is no sentence that could conceivably be imposed upon you today that would not result in the cancellation of your visa.

The submission was that I would focus on hardship: that having been in Australia since you were a teenager, you have worked, studied, and raised children in Queensland, that your current partner of six years lives here with your two children, that whilst your childhood was spent in the Cook Islands and Auckland, you have very little connection with either country and would suffer hardship as a result of your deportation. As I indicated, because there is no conceivable sentence that I could impose that would not see that visa cancelled, I do tend to give that factor limited weight in the present circumstances.” (my underlining).

37. [37]
    The applicant relied upon the principles in R v Norris; Ex parte Attorney-General (Qld)^[4] as extracted in R v GBD,^[5] and in particular at paragraph [52](c) of GBD:

“The prospect of deportation may be a relevant factor to be considered in mitigation of a sentence where it makes the period of incarceration more onerous and also where, upon release, the fact of imprisonment will deprive the offender of the opportunity of permanently residing in Australia, providing that the prospect of deportation or its impacts are not merely speculative.”

38. [38]
    The words used by the sentencing judge in this case show that she well understood that was the submission which was being made.  She also understood the factual basis for the submission.  As noted above, the sentencing hearing was conducted on the basis that it was almost certain that the applicant would be deported at the conclusion of his sentence; this was not challenged on appeal.
39. [39]
    The sentencing judge said that she gave the factor of hardship likely to be caused by deportation “limited weight in the present circumstances”.  I cannot see that that was an error.  For reasons explained at [29] above, the hardship asserted by the applicant was not of the highest order.  But in any event, where the offending is as serious as that undertaken by the applicant, all personal factors will be, to a significant extent, overwhelmed by a need to recognise the criminality of the offending itself.  I cannot see that the sentencing judge erred in giving hardship caused by likely deportation no more than limited weight against all the other matters for her consideration on sentence.  Indeed, the applicant expressly did not put the appeal point on the basis that the sentencing judge erred in giving only a little weight to this factor.  Instead, the point made was that the underlined part of the above passage showed that the sentencing judge misunderstood or misapplied the principles relating to hardship caused by the likelihood of deportation.
40. [40]
    I can see why the applicant raises this point.  It is hard to understand the underlined sentence in the context of everything else which the sentencing judge said about this topic.  Sometimes there are cases where a judge is asked not to impose a period of actual imprisonment, so as to avoid triggering one of the criteria used by the Department of Foreign Affairs in applying the character test.  This was not such a case and, despite this one discordant sentence, there is absolutely no other indication in the sentencing remarks, or at the sentencing hearing itself, that the sentencing judge thought this was such a case.  Perhaps the underlined sentence is simply an irrelevancy which crept into the ex tempore sentencing remarks.  Perhaps it is a badly expressed attempt to state the sentencing judge’s view that in the context of the criminality of the applicant’s offending, considerations of hardship are overwhelmed.  However the underlined sentence is interpreted, the applicant has not persuaded me that the sentencing judge misunderstood the principles relating to hardship from likely deportation; misunderstood the particular point which was being made about those principles in this case, or misunderstood the factual basis upon which the submission was being made.  I can see no relevant error.
41. [41]
    I would dismiss the application for leave to appeal against sentence.
42. [42]
    BRADLEY J:  I agree with the reasons of Dalton JA and concur with the order proposed by her Honour.
43. [43]
    HINDMAN J:  I agree with the reasons of Dalton JA and with the order proposed by her Honour.